1987 Supreme(MP) 567

IN THE HIGH COURT OF MADHYA PRADESH
P.C. Pathak, J.
Pushpalata – Petitioner
Versus
Hirala – Respondent
F. A. No. 196 of 1985 (J)
Decided On : 16-02-1987

Headnote:(1) Hindu Marriage Act, 1955 – S. 9 – suit for restitution of conjugal rights – marriage not proved by reliable evidence – suit liable to be dismissed.

       (2) Hindu Marriage Act, 1955 – S. 5 – Hindu marriage – proof of.

        Short Note

       1. This is an appeal by the defendant under section 28 of the Hindu Marriage Act against whom a decree for restitution of conjugal rights was passed.

       2. The case of the respondent – plaintiff is that on May 2, 1982, he was married to the defendant according to the Hindu rites. The defendant came and lived with the plaintiff and continued to discharge conjugal obligations. In January 1983, the defendant returned back to her father’s house. Thereafter the plaintiff made several attempts to take her back to the marital home, but she declined to go without any reasonable and probable cause. He, therefore, filed the suit for restitution of conjugal rights.

       3. The defendant emphatically denied that on May 2, 1982, or any other date, the plaintiff married her.

       Held: Ram lakhan (P.W. 2), aged about 23 years, is the plaintiff's cousin. He stated that the defendants marriage took place with the plaintiff in May 1982. There were fifty persons in the marriage procession. He proved one letter (Ex. P. 1) allegedly written by the defendant and sent to him through post. The letter is on a plain paper and is not accompanied with the covering envelope. He could not give details of the gifts given in the marriage. He also could not give other details of his coming to Rewa and other place.

       4. Sushil Kumar Patel, aged about 23 years, (P.W.3) is Sarpanch of village Sotha. He claimed to present from the bride's party in response to an invitation card (Ex. P. 2). In cross – examination, be stated that the invitation card was given to him by the Gram Sevak. He also admitted that he is a frequent visitor to Courts, criminal and civil both. He denied the suggestion that the invitation card (Ex. P. 2) was subsequently fabricated.

       5. The aforesaid is total evidence led by the plaintiff to prove the alleged marriage. The invitation card (Ex. P. 2) is a private document. It is admissible only to the extent the witness says he received it. Its contents have not been proved according to law. Manuscript was neither summoned nor printer was produced to prove the same. The Gram Sevak who allegedly delivered the invitation card has not been examined. The card purports to have been sent by the bride's father. Normal custom is that such cards are distributed by a member of the bride's family.

       6. The letter (Ex. P. 2) is not proved to be in the handwriting of the defendant. The letter is allegedly addressed to Ramlakhan (P.W.2). There is no reason as to why if the marriage had taken place with the plaintiff, the defendant would not address a letter to the plaintiff himself. The plaintiff has also not tiled any Lagna Patrika and any invitation card which he may have got printed and distributed from his side. He has also not examined the priest, the barber, the washer – man, any member of the band party or any independent person who might have joined the marriage procession. He has assigned no reason as to why he could not examine his father who allegedly settled his marriage with the defendant.

       7. In rebuttal of the plaintiff's evidence, the defendant's father Ramsumiram singh came in the witness – box as D. W. 2. He denied that he settled the defendants Marriage with the plaintiff or that he had ever sent the invitation card (Ex. P. 2) to Sushil Kumar (P.W.3). He further stated that his family priest is Churamani. He also denied that he had distributed the invitation card (Ex. P. 4) printed on the even of the alleged marriage of Kanaklata. He did not hand over any such card to the plaintiff According to him, the defendant was married to Ramsajivan and Gavana Ceremony so far has not taken place.

       8. Churamani (P.W.3) Stated that Pushp'a's marriage had taken place at the age of 10 years with a boy other than the plaintiff. The defendant entered the witness box as D. W. l. She also stated that she was married to Ramsajivan when she was 81 years old only. She denied that she was married to the plaintiff. She went for nurses training in 1978 and completed it in July 1978. She became a regular nurse in September 1982. During the training and even thereafter, she lives in nurses hostel. She emphatically denied that during her training, she ever went to her parents' village Dihi. She denied writing the letter (Ex.P.1). She also denied that she ever went to the plaintiff's house in village Jurmania. In cross – examination she admitted that Ramsajivan has married another woman. The last witness examined by the defendant is Balaram (D. W. 4). He stated that the defendant's marriage had taken place about 14 – 15 years ago and she was not married to the plaintiff.

       9. It is true that the defendant did not examine Ramsajivan. All the same, she has led evidence which prima facie rebuts the evidence led by the plaintiff. The defendant has also examined the family priest. That way, the defendant's evidence has an edge over the plaintiffs evidence. The plaintiff, as seen above, has not only failed to prove the documents filed by him, but also failed to examine many other material witnesses. The burden to prove the marriage admittedly lay on him which he failed to discharge. Even if the defendant has not proved her marriage with Ramsajivan, the plaintiff cannot take the advantage of that. The plaintiff bas to prove his own case and stand and or fall on the strength of his own evidence, and not on the weakness of the defendant's evidence. The plaintiff has also not explained as to why he did not serve any notice before filing of the suit. In the absence of any reliable documentary proof and on account of non – examination of material witnesses, I am not prepared to act on the oral testimony of three young boys examined on behalf of the plaintiff.

       10. In view of the foregoing discussions, the appeal succeeds and is hereby allowed. The judgment and decree of the Court below are hereby set aside and Instead, the plaintiff's suit is dismissed. Appeal allowed.